Ending The Digital Wild West? Online Content Regulation in the European Union and the United States

We live in times of great salience of internet governance. In times when the democratic world has generally recognised that the digital industry and modern big tech companies have produced not only progress but also new challenges which desperately need addressing, such as the efficient spread of illegal or otherwise harmful content online. The European Union has been particularly active on this issue: its Digital Services Act passed in 2022 greatly updates the rules around the responsibilities of online platforms for how they manage content. In the USA, however, no such updating has occurred yet. This comparative qualitative analysis based on primary and secondary sources as well as interviews unpacks the main reasons for the regulatory divergence in the period between 2016 and early 2023, which, if lasting, could lead to increasingly different internet experiences for Europeans and Americans, or big complications for the internet companies operating in both markets, and be an indicator of further divergences in other digital policy areas. The paper identifies the different legal frameworks within which policymakers on the two sides of the Atlantic operate as one part of the explanation given especially how the First Amendment jurisprudence ties Americans’ hands regarding government regulation of online content. The second part of the explanation consists of recognizing how the political conditions in the EU have in recent years been favourable to sweeping new digital regulations – with the Union assigning high priority to its digital agenda and reaching broad consensus around its general goals which facilitated the negotiations about specific policies and instruments – while the US government has been far less consistently focused on the issue, and its political class far more polarized about the nature of the problem of online content moderation as well as appropriate responses.